A recent decision shows courts will take a pragmatic approach to insolvencies where there are limited assets at stake, says Toronto corporate and commercial lawyer Marlin Horst.

In the Superior Court case, the judge decided a court-appointed receiver should have responsibility for evaluating the claims of secured creditors, even though the debtor had subsequently made an assignment in bankruptcy with a different trustee.

Under normal circumstances, explains Horst, a partner with the Toronto office of Shibley Righton LLP, court-appointed receivers are often made trustees when the company enters bankruptcy. However, that didn’t happen in this case because the company made its assignment voluntarily, and without leave of the court.

Established banks’ control over Canadian fintech may be inhibiting the sector’s development in this country, says Toronto corporate and commercial lawyer Marlin Horst.

A recent report by the Competition Bureau concluded regulators and institutions must work together to boost flagging innovation rates in Canada’s emerging technology-driven financial services after canvassing the opinions of players in the field.

“In the rest of the world, fintech is a disruptor that changes the way people deal with financial institutions, but in Canada’s its’ been co-opted by the old guard,” he says.

Canada’s unusually concentrated industry, which sees just five banks account for more than 90 per cent of the domestic market, means that upstarts set their sights on joining the established players, rather than challenging them, Horst says.

The Canadian Securities Administrators (CSA) recently updated its regulatory sandbox, which is aimed at providing support for Fintech businesses working on innovative products.

Marlin Horst, Shibley Righton LLPRegulatory sandboxes are used to allow developers to test their products or business models in a live environment without the restrictions of heavy regulations.

The CSA regulatory sandbox update covers a five-step process for Fintechs making use of the space. The steps include directions regarding filing of applications, the application review process and determine the limits and conditions that...

Creditors must move quickly once they discover their secured property has moved to another province, Toronto corporate and commercial lawyer Marlin Horst tells AdvocateDaily.com.

Horst, a partner with the Toronto office of Shibley Righton LLP, says secured parties generally get 60 days to register in a new jurisdiction when property is brought across borders within Canada. However, since creditors will not always know when a move is made, Ontario’s Personal Property Security Act (PPSA) gives them 15 days to register from the time they received notice that their collateral was “brought in” to the province.

In a recent case, an Alberta auto financing company saw its secured claim on a truck denied by a Superior Court judge after the owner declared bankruptcy in Ontario.

The company perfected its interest in the Dodge Ram 1500 back in 2014, by registering under Alberta’s version of the PPSA when the owner bought it new. However, it took 20 days to register the vehicle under Ontario’s PPSA after receiving notice of the owner’s bankruptcy.

Counsel will have to change the way they think about priority under the Personal Property Security Act (PPSA) after a decision that favoured a solicitor’s charging order over a perfected security under the Act, says Toronto corporate and commercial lawyer Marlin Horst.

Horst, a partner with the Toronto office of Shibley Righton LLP, teaches a course on the PPSA at Queen’s University’s law school and says he always tells students that the Act applies to any security interest unless it is specifically exempted in the law’s wording.

However, in a recent case, an Ontario Superior Court judge sided with the lawyers for a general contractor, giving it first dibs on bonds posted into court.

That was despite the claim of a specialty insurer with a registered perfected PPSA security over the contractor'sentire assets that it should be first in line, ahead of any solicitor's charging order

A new government-backed capital fund is a good opportunity for underserved small and medium-sized businesses to get access to expertise as well as cash, says Toronto corporate and commercial lawyer Marlin Horst.

A number of financial institutions, including the country’s biggest banks, have teamed up to create the Canadian Business Growth Fund, which aims to make available up to $500 million over the next year to help smaller companies grow. If it takes off, the fundwilldouble in size over the following nine years.

The fund’s sponsors have also promised to provide advice and mentorship to businesses so that they can reach their potential.

Horst, a partner in the Toronto office of Shibley Righton LLP, says a large swath of early stage Canadian businesses are caught in the gap between angel investment funding —unavailable to all but a select few —and the public markets, which tendto be a viable option onlyfor larger, more established companies.

Small and medium-sized corporations are most at risk of violating a little-known Ontario law that changes the way businesses track their real estate interests, says Toronto corporate and commercial lawyer Marlin Horst.

The amendments force businesses registered in Ontario to draw up and maintain a list of all their ownership interests in lands in the province, including the date of acquisition, and later, if applicable, the date of disposal. While the new law is intended to smooth the process when dissolved corporations forfeit their property to the Crown, Horst says it has significant implications for all businesses registered under the OBCA.

“It’s a pretty major change because many corporations operate without keeping a register of their real property, and I don’t think it has been advertised as well as it should be,” says Horst, a partner in the Toronto office of Shibley Righton LLP.

The dominant position of Canada’s big banks has prevented fintech firms from disrupting financial services in this countrythe way they have elsewhere in the world, says Toronto corporate and commercial lawyer Marlin Horst.

The fintech sector, which includes startup firms focussing on financial technology in areas such as payment processing and alternative lending, has taken off globally in the last few years.

“In some areas of the world, they are causing a huge disruption to the status quo, particularly in Europe, where the banking system is in disarray,” says Horst, a partner in the Toronto office of Shibley Righton LLP.

The OSC approved a settlement with CIBC World Markets Inc., CIBC Investor Services Inc. and CIBC Securities Inc. (the CIBC Dealers) after the CIBC Dealers discovered and self-reported a system glitch which led to 80,000 clients overpaying fees over a 14-year period.

The legal industry may be in the midst of a technological revolution, but don’t expect lawyers to be replaced by robots any time soon, says Toronto corporate and commercial lawyer Marlin Horst.

A U.S. company is developing artificial intelligence that will automate some of the “legal drudgery” involved in corporate mergers and acquisitions, reports the Waterloo Record.

Automation might speed up some aspects of the due diligence work required in mergers and acquisitions, but Horst tells AdvocateDaily.com any gains in efficiency will come at a price.

“If associates are no longer involved in that aspect of the process, how do they go from being a law student to having the level of sophistication and expertise that’s required of a partner,” he says, noting the experience gained by doing such “grunt work” is invaluable and essential for any lawyer looking to develop strengths in the area.

Horst, a partner with Shibley Righton LLP, says the existing BSA is antiquated, redundant and has been superseded by up to six other pieces of legislation.

“It was originally passed about 100 years ago to prevent people from getting inventory and selling it off quickly without paying their suppliers,” he tells AdvocateDaily.com. “But there are several other statutes in place, such as the Personal Property Securities Act and the Fraudulent Conveyances Act, which allow the supplier to get their inventory back by reversing the transaction.”

For many practitioners the question of where to register personal property security is hardly given any thought at all. However, there may be unintended consequences of not thinking through the issue. To lose security over certain collateral because the question of where to register was not considered is not a situation any lawyer would like to find themselves in.

The question of where to register a security interest in personal property becomes especially crucial if you have a Canadian debtor with assets in the United States or a U.S. debtor with assets in Canada. For the purpose of this article we will refer to Canada other than Quebec. While the law between Quebec and the rest of Canada has to some extent been harmonized from a substantive perspective the form is still quite different.

Prior to the turn of the century, Canadians were quite smug when dealing with Americans in connection with where to register security. Under the old Uniform Commercial Code Chapter 9 (UCC 9) regime in the U.S., a secured party was required to register in each state where a debtor had assets and often in each county as well. This could result in hundreds of registrations to cover all of a debtor’s property. In Canada we only had nine common law provinces and three territories. It made registration a much simpler matter.

In 1998, UCC 9 was amended to radically change the registration system. After the change, a secured party could perfect its security interest against all of a debtor’s assets in the whole of the United States simply by registering in the jurisdiction where the debtor was formed. For example, if the debtor was a Delaware corporation, a registration in Delaware perfected the secured party’s security interest in all of the collateral of the debtor in all of the states of the United States.

Canada was now the laggard in terms of the efficiency of registrations.

With the change in law in the United States a new circular analysis regarding registration came into being. Under the revised U.S. law where a debtor had collateral in the United States but the entity was formed in a jurisdiction which had a similar regime as that of the UCC, registration in that jurisdiction was sufficient to perfect a security interest in collateral in the U.S. Arguably the Personal Property Security Act regime throughout common law Canada was similar to the UCC 9 regime and consequently, under U.S. law, a registration in Ontario was sufficient to perfect a security interest in collateral located in the U.S. if the debtor was an Ontario corporation. However, the Ontario Personal Property Security Act specifically states that you must register in the location of the collateral to perfect a security interest. The Ontario regime is sending the secured party to the United States and the U.S. regime is sending the secured party to Ontario.

While this is an interesting academic exercise the practical result is that where the debtor is Canadian with assets in the U.S. it is common practice to register in the Canadian jurisdiction and the applicable U.S. jurisdiction. Just which is the applicable U.S. jurisdiction is another issue. Under the UCC 9 registration regime a registration in the District of Columbia will perfect a security interest given by a non- U.S. entity throughout the United States. Most Canadian secured parties are not comfortable with that and will insist that you register in each state where the debtor has assets.

Ontario has moved to fix one of the registration conundrums in Canada. In the case of intangible and movable assets the old rule (and still rule in all other common law provinces) was that you register where the chief executive office of the debtor is located. Conveniently “chief executive office” is not defined. As of Jan. 1 the rules in Ontario changed to deal with this (and move one step closer the U.S. registration regime). The new rules determining the location of the debtor (and hence the jurisdiction in which to register in respect of intangibles and movable assets) now refer to the formation of the debtor. In the case of a corporation the jurisdiction of its incorporation shall be the location of the debtor. If the debtor is an Ontario corporation, then the jurisdiction for registration is Ontario. In the case of a Canada corporation it is the location of the registered office that determines location. In the case of a limited partnership it is the jurisdiction where the limited partnership is formed. There are also rules for general partnerships, trusts and other entities. The new location of debtor rules are much clearer to understand under the revised Ontario rules.

As only Ontario has changed the rules there are still situations in which dual registrations may be required. For example, if an Alberta corporation has its principal office in Ontario, the Ontario rules would send the secured party to Alberta for registration. Similarly the Alberta rules would send the secured party to Ontario (chief executive office). As mentioned above, while this is an interesting academic debate the practical solution is to register in both locations.

The question of where a secured party should register to perfect its security interest in the collateral requires more than a fleeting analysis.

Toronto lawyer Marlin Horst says he finds corporate lending work intellectually stimulating and most enjoys putting together the “pieces of the pie.”

“What’s interesting to me is making sure lenders are getting security over the assets that they need to have security over. That then becomes a bit of a puzzle as to what goes where and how to ensure you have the best possible security and that the assets can’t leak out of your security box.

A Superior Court decision in a shareholder dispute raises the novel issue of whether an equity kicker can be considered interest pursuant to the Criminal Code, Toronto corporate lawyer Marlin Horst tells AdvocateDaily.com.

The matter of Bimman v Neiman, 2015 ONSC 2313 (CanLII) involved Sasha Bimman and his numbered company which commenced an oppression remedy action pursuant to s. 248 of the OntarioBusiness Corporations Act.

Horst, a partner with Shibley Righton LLP, says one of the more interesting issues addressed in Bimman is whether an equity incentive in connection with a shareholder loan would be considered a criminal interest rate as set out in s. 347 of the Code.

Marlin Horst is a partner with Shibley Righton. His experience involves acting on behalf of corporations in a range of industries including financial services, where his practice encompasses all types of lending including syndicated, senior, subordinated, asset-based and project finance.

In addition to his corporate practice Marlin practices in the area of estate planning and administration. He has experience acting for high net worth individuals as well as other entrepreneurs and business owners.

Marlin's corporate and lending experience includes transactions in financial services, manufacturing, hospitality, retail, services, energy, mining and private equity industries. He also has expertise in restructuring transactions, acting on behalf of both creditors and debtors. Marlin regularly advises on mergers and acquisitions, mutual funds, real estate, general corporate and commercial transactions as well as venture capital/private equity transactions. Prior to joining Shibley Righton, he practised corporate and finance law in both Toronto and Bermuda.

Marlin is a sessional professor at Queen's University Law School where he teaches courses on Commercial Law and the Personal Property Security Act. In addition, he was an adjunct professor of Banking Law at the University of Western Ontario for over ten years.

Outside of the practice of law Marlin is a director and Vice President of FOCA (Federation of Ontario Cottagers Association). Marlin also is a director of the charity Friends of the Learning Disabled, Camp Kirk, an overnight camp for children with learning exceptionalities.